Wendy Hall v. Green Tree Servicing, LLC

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CA-01107-COA

WENDY HALL APPELLANT

v.

GREEN TREE SERVICING, LLC, SUCCESSOR APPELLEES
BY MERGER TO WALTER MORTGAGE
COMPANY, LLC AND W. STEWART ROBISON

DATE OF JUDGMENT: 05/28/2013
TRIAL JUDGE: HON. JANE R. WEATHERSBY
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CHANCERY
COURT
ATTORNEY FOR APPELLANT: ALFRED PETER CUTTURINI
ATTORNEYS FOR APPELLEES: W. STEWART ROBISON
ALTON LAMAR WATTS
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: FOUND TITLE OF DISPUTED REAL
PROPERTY VESTED IN APPELLEES
THROUGH A VALID FORECLOSURE
SALE
DISPOSITION: AFFIRMED - 03/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., ROBERTS AND MAXWELL, JJ.

ROBERTS, J., FOR THE COURT:

¶1. On September 10, 2012, a foreclosure sale of a piece of residential property located

in Sunflower County, Mississippi, was held on the front steps of the Sunflower County

Courthouse, with Green Tree Servicing LLC, successor by merger to Walter Mortgage

Company (referred to as Green Tree), buying the property. Wendy Hall and James Thomas

filed a complaint to set aside the foreclosure sale on the grounds that the property description
was incorrect and that W. Stewart Robison was not the current trustee; thus he did not have

the authority to sell the property. The Sunflower County Chancery Court held that the

foreclosure sale should not be set aside since Robison was a proper trustee and that there was

no significant error in the property description to warrant setting aside the sale. Hall raises

the same issues on appeal, but finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On February 9, 1993, Hall and Thomas executed a deed of trust in favor of Jim Walter

Homes Inc. encumbering a piece of real property located in Sunflower County. Attached to

the deed of trust was the following property description:

Commence at the S/W corner of Block 6 of the McInnis First Addition to the
Town of Inverness, and run West to the centerline of U.S. Highway No. 49;
thence South along the centerline of said highway 938.50 feet; thence North
89 Degrees 19 Minutes East: 34.50 feet to the east right of way of said
highway and the point of beginning of the herein described parcel of land;
thence continue North 89 Degrees 19 Minutes East 70.0 feet; thence South 87
Degrees 41 Minutes East 14.50 feet; thence South 00 Degrees 12 Minutes East
along the top of said ditch 40.4 feet to a grader blade in the center of an east-
west ditch; thence North 85 Degrees 36 Minutes West along the center of the
east-west ditch 109.5 feet to a grader blade 34.5 feet east of the centerline of
the highway; thence North 104.5 feet to the point of beginning, being a part of
Block 8, McInnis First Addition according to the official map of Inverness,
Mississippi, drawn by L.E. Claiborne, April 7, 1953.

The deed of trust named Robison as trustee. The deed of trust was assigned multiple times,

but ultimately ended with a June 15, 2012 assignment to U.S. Bank N.A. as trustee on behalf

of Mid-State Trust IV.

¶3. Hall and Thomas defaulted on the deed of trust, so in August 2012, Robison, as

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trustee, began the foreclosure process. Robison published the notice of a foreclosure sale in

the local newspaper with an identical property description as above, except that the word

“line” from “centerline” was omitted in one instance. So the property description in the

notice of sale read:

Commence at the S/W corner of Block 6 of the McInnis First Addition to the
Town of Inverness, and run West to the centerline of U.S. Highway No. 49;
thence South along the centerline of said highway 938.50 feet; thence North
89 Degrees 19 Minutes East: 34.50 feet to the east right of way of said
highway and the point of beginning of the herein described parcel of land;
thence continue North 89 Degrees 19 Minutes East 70.0 feet; thence South 87
Degrees 41 Minutes East 14.50 feet; thence South 00 Degrees 12 Minutes East
along the top of said ditch 40.4 feet to a grader blade in the center of an east-
west ditch; thence North 85 Degrees 36 Minutes West along the center of the
east-west ditch 109.5 feet to a grader blade 34.5 feet east of the centerline of
the highway; thence North 104.5 feet to the point of beginning, being a part of
Block 8, McInnis First Addition according to the official map of Inverness,
Mississippi, drawn by L.E. Claiborne, April 7, 1953.

(Emphasis added). On September 10, 2012, the foreclosure sale was held, and the property

was sold to Green Tree. On September 24, 2012, the trustee’s deed conveying the property

to Green Tree was recorded in Sunflower County.

¶4. On March 1, 2013, Hall and Thomas filed a complaint requesting that the foreclosure

sale be set aside and seeking damages and injunctive relief. In their complaint, they alleged

that the notice of sale was defective because it did not contain an accurate property

description due to the omission of the word “line” from the description. Additionally, they

alleged that Robison was no longer the trustee due to the deed of trust’s assignment to U.S.

Bank; therefore, he did not have the authority to conduct the foreclosure sale. Also, they

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claimed that the foreclosure sale was defective because the notice of sale did not provide the

street address for the Sunflower County Courthouse, which was a deterrent for those bidders

who did not know where it was. Lastly, Hall and Thomas claimed that Green Tree

intentionally inflicted emotional distress upon them and their families. On the same day, Hall

and Thomas also filed a motion for a temporary restraining order and a preliminary

injunction requesting that Green Tree be enjoined from taking possession of the property.

¶5. In their separate answers, Green Tree and Robison both denied Hall and Thomas’s

allegations. Robison also argued that the complaint should be dismissed because it was

barred by the doctrine of res judicata, as a default judgment was entered against Hall and

Thomas on October 6, 2012, in the Sunflower County Circuit Court. According to the final

default judgment filed on February 19, 2013, Green Tree filed suit to recover the property

from Hall and Thomas, who failed to plead or otherwise defend their default; therefore, the

circuit court ordered the sheriff or another lawful officer to remove Hall and Thomas, and

their possessions, from the property. Shortly thereafter, Hall and Thomas instituted the

present suit in the chancery court.

¶6. The chancery court held a hearing on March 5, 2013, on Hall and Thomas’s motion

for a temporary restraining order, which it subsequently denied because Hall testified at the

hearing that she and her children would be able to move in with her boyfriend; thus, she

would not suffer irreparable injury, loss, or damage. The chancery court held Green Tree’s

and Robison’s motions for dismissal in abeyance. Then, on May 28, 2013, the chancery

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court heard arguments on the merits. After hearing the evidence, including two expert

witnesses’ testimonies as to what effect, if any, the omission of the word “line” would make

in the property description, the chancery court found in favor of Green Tree and Robison, and

it dismissed Hall and Thomas’s complaint. The final judgment was entered on June 5, 2013.

¶7. Hall timely filed her notice of appeal on June 26, 2013.1 On appeal, she raises the

following claims:

I. Whether the [chancery] court erred as a matter of law in finding the
omission of the word “line” from the Deed of Trust, Notice of Sale, and
Trustee’s Deed has no effect on the validity of the legal description and
the ensuing foreclosure sale in light of [the appellate] court’s
requirement for a correct legal description.

II. Whether the [chancery] court erred as a matter of law in finding that the
foreclosure sale conducted by the alleged Trustee, Appellee Robison,
was valid in all respects after also finding Plaintiffs indebted to another
Trustee, U.S. Bank, N.A., as Trustee on behalf of Mid-State Trust IV.

STANDARD OF REVIEW

¶8. If the chancery court’s findings of fact are based on substantial evidence and the

findings are not an abuse of discretion, manifestly wrong, clearly erroneous, or the result of

the application of an erroneous legal standard, then this Court will not disturb the chancery

court’s findings. Biglane v. Under The Hill Corp., 949 So. 2d 9, 13-14 (¶17) (Miss. 2007)

(quoting Cummings v. Benderman, 681 So. 2d 97, 100 (Miss. 1996)). We review questions

of law utilizing the de novo standard. Id. at 14 (¶17).

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While Thomas did participate in the trial, he did not file a notice of appeal;
therefore, he is not a party to the present appeal.

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ANALYSIS

I. Validity of the Property Description

¶9. Hall’s first issue on appeal is that the chancery court erred in finding that the omission

of the word “line” from a portion of the legal property description was harmless and that the

omission had no impact on the foreclosure sale’s validity. According to Hall, the omission

of “line” from “centerline” means that the property description did not correctly describe the

property intended to be sold at foreclosure. While Green Tree’s two expert witnesses

testified that the omission of “line” would make no difference in the property description’s

validity, as the description still accurately describes the property, Hall claims that this

rationale is based on a surveyor’s opinion and not what a “layman of average intelligence and

business prudence” would conclude. Hall says that “[a] centerline to a layman may indicate

there are left and right lines, and a center may indicate a point where he [(the layman)]

reaches with no expectation of moving beyond that point.” Hall further claims that the

average layman would be deterred from bidding on the property because the omission of

“line” would make it difficult to ascertain what property was being sold.

¶10. The Mississippi Supreme Court has held that purpose of a notice of a foreclosure sale

is “to advise the public of what is to be sold, and the time when, and place where, and the

terms upon which it may be bought.” Griffin v. Land, 214 Miss. 557, 567, 59 So. 2d 290,

293-94 (1952) (citation omitted). Put another way, “the essentials of a notice of sale under

a trust deed are . . . a statement of the time, place, and terms of sale, and such a description

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of the property to be sold as, if read by persons familiar with the neighborhood, will advise

them of what is to be sold . . . .” Id. However, even if the notice of sale contains all the

essentials, the supreme court has noted that a notice of sale may still be fatally defective if

a “layman of average intelligence and business prudence” would be deterred from bidding

on the property, as the bid would be considered unsafe. Fed. Loan Bank v. Collom, 201

Miss. 266, 277, 28 So. 2d 126, 128 (1946). Furthermore, in regard to errors in property

descriptions, the supreme court explained in Seal v. Anderson, 235 Miss. 249, 254, 108 So.

2d 864, 865 (1959):

The precise point of our decision is whether or not the description contained
in the deed of trust and in the notice of sale is so fatally defective as to render
the deed of trust and the foreclosure thereof void; that is to say whether or not
the description created a patent ambiguity that cannot be aided by proof . . . .

¶11. We face the same issue explained in Seal of whether a property description is so

fatally defective as to set aside the foreclosure.2 We find that the property description is not

fatally defective, as it adequately describes the property being sold. Hall disputes the

testimonies of two expert witnesses at trial that there is no difference between “center” and

2
In Seal, 235 Miss. at 252, 108 So. 2d at 865, the Seals sought to cancel a deed of
trust and foreclosure proceeding on the basis that the property description in the deed of trust
and notice of sale described the property as “Tp. 1” instead of “Tp. 1 S.” Government
survey records presented at trial showed that “Tp. 1” could not be located, as the property
should have been described as “Tp. 1 S” or “Tp. 1 N, R 13 W.” Id. at 253, 108 So. 2d at
865. The supreme court agreed, and it found that the property was not adequately described
in the deed of trust or notice of sale. Id. at 257, 108 So. 2d at 867 (“[W]e find from the
proof that there is a Township 1 N and a Township 1 S, but there is not ‘Township 1’ in
Forrest County.”).

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“centerline” when surveying property, but she provides no proof that the property would be

any different if measured from the “center” of the ditch as opposed to the “centerline” of the

ditch. While the definition of “center” and “centerline” may differ in the dictionary, Hall has

failed to demonstrate how an average person, in inspecting the property pursuant to the

property description omitting “line,” would be unable to ascertain the property being sold or

would be deterred from bidding on the property.

¶12. Therefore, we find this issue to be without merit.

II. Trustee

¶13. Second, Hall contends that Robison was no longer the trustee due to an assignment

of the deed of trust; therefore, he lacked the authority to conduct the foreclosure sale.

¶14. Mississippi Code Annotated section 89-5-45 (Rev. 2011) provides that the substitution

of a trustee “shall appear of record in the office of the chancery clerk of the county where the

land is situated,” and be “spread at large upon the record before the first advertisement or

notice of sale shall have been posted or published[.]” The initial deed of trust named

Robison as trustee, and the record is void of any substitution of a trustee. We note that Hall

has cited no authority to support her contention that the assignment of a deed of trust

automatically removes the trustee on the initial deed of trust, especially without the proper

substitution of a trustee pursuant to section 89-5-45. See M.R.A.P. 28(a)(6); Little v.

Norman, 119 So. 3d 382, 386 (¶14) (Miss. Ct. App. 2013) (“The failure to cite authority in

support of arguments operates as a procedural bar on appeal.”).

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¶15. We find this issue to be without merit.

¶16. THE JUDGMENT OF THE CHANCERY COURT OF SUNFLOWER
COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.

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